Robocall lawsuit might get tossed

Apr. 29, 2013

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A state senator might not be legally allowed to sue over campaign finance violations, a judge suggested Monday in Sioux Falls.

Considering a lawsuit filed by state Sen. Dan Lederman against people allegedly behind 2012 political robocalls, state circuit court Judge Stuart Tiede said it seemed only the secretary of state or prosecutors could use the courts to enforce election law.

“This is not the attorney general bringing an action on behalf of the secretary of state to enforce campaign finance laws,” Tiede said of Lederman’s lawsuit. “This is a private individual, essentially becoming a private attorney general to enforce campaign finance laws.”

Lederman had filed a lawsuit last year after anonymous robocalls attacked Republican legislative leaders, asking a judge to declare that the robocall senders had violated state law. Months later, Attorney General Marty Jackley announced criminal charges against a conservative activist, Daniel Willard, for allegedly sending the robocalls.

That criminal case is on hold after a change in judges, but the civil case is moving forward — for now.

Tornow also argued that Lederman’s lawsuit should be dismissed because the state Legislature, in response to the 2012 robocalls, this year amended the very campaign finance laws Willard is accused of violating. Afterward, Arends said he’s confident in his case, but is planning a next step — a new claim filed under the federal Telecommunications Consumer Protection Act, rather than South Dakota campaign finance laws.

“At the end of the day, we still believe that Lederman and (his political action committee) have standing in the case,” Arends said. “The judge may not agree with that. We may not get a favorable ruling out of him this time. But ... we’re moving in the direction of Telecommunications Consumer Protection Act violations.”

Tornow said he was “pleased the judge seemed to indicate that he, too, had significant concerns,” but added that he was “troubled” by the report Lederman might file a new complaint. “At what point do they stop chasing their own tail?” he said.

Last week, Arends had filed an affidavit, based on an interview he conducted with Gary Dykstra of Sioux Falls. In the affidavit, Arends described Dykstra’s comments, which implicated both Willard and state Rep. Stace Nelson in the robocalls.

On Monday, Tiede said he had “several concerns” about that affidavit, which he said probably “contains inadmissible hearsay.” But Arends withdrew the affidavit and filed instead a transcript of the Dykstra interview and an affidavit from Dykstra attesting to the transcript’s accuracy.

Those documents were not available Monday.

After an hour of arguments, Tiede didn’t rule on the motion from Tornow to dismiss the case. He gave Arends extra time to file new evidence, and will reconsider the motion in the future.